An old master, and other political essaysWilson, Woodrow
Science
An old master, and other political essays
Wilson, Woodrow
Political science; Smith, Adam, 1723-1790; United States -- Politics and government
into logical categories; it was its function, rather, to give a clear
explanation of the principles and order of its life and a satisfactory
working analysis of its several parts and conceptions. Thibaut, on the
other hand, believed it to be the legitimate function of the jurist to
make piecemeal law up into organic wholes, rendering it clear where it
had been obscure, correcting its inconsistencies, trimming away its
irregularities, reducing the number of its exceptional provisions,
discovering and filling in its gaps, running it through with threads
of system, giving it elegance of style and completeness of method.
He thought it possible to change law from a system of habits into a
system of commands. These were, of course, the ideas which were most
attractive, most congenial, to the mind of Austin.
But, however natural such conceptions may have been to Austin, it
must certainly be regarded as singular that, although rejected on
the Continent, where sovereignty had throughout the most important
formative periods of European history been quite unequivocally lodged
in unmistakable sovereigns, these notions should have been accepted in
England, the land where law had been least subject to doctrine, most
observant of times and circumstances, most piecemeal in its manner of
construction, least like a set of commands, and most like a set of
habits and conventions. Doubtless we are to remember, however, that
the feudal theory of law had long been held with perfect confidence by
English lawyers in calm despite of fact. Probably it is true that the
English mind (our own), with its practical habit, likes nice systems
well enough because of their appearance of completeness, has a sense of
order which enjoys logic, without having any curiosity or capacity for
the examination of premises. The Englishman has always been found ready
to accept, from those who had the leisure to amuse themselves in that
way, interesting explanations of his institutions which did not at all
fit the actual facts. It has caused him no inconvenience, for he has
not perceived the lack of adjustment between his actual transactions
and the theory he has accepted concerning them. He has, of course, not
troubled himself to alter his institutions to suit his philosophy. That
philosophy satisfied his thought and inconvenienced neither Parliament
nor the law courts. And so he had no doubt Austin was right.
Public-domain text, read in full here on John Shaqi.
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